(a) Voluntary disclosure. A person upon whom these rules confer a
privilege against
disclosure is conferred by rule or by law waives the privilege if
hethe person or histhe
person's predecessor, while holder of the privilege, voluntarily discloses or
consents to
disclosure of any significant part of the privileged matter. This rule does not apply if the
disclosure itself is privileged or if N.D.R.Civ.P. 26 (b)(65)(B) applies.

(b) Involuntary disclosure. A claim of privilege is not waived by a disclosure that was
compelled erroneously or made without an opportunity to claim the privilege.

This ruleSubdivision (a) merely states in express terms that
which is inherent in the
preceding rules of privilege. The rules of privilege are designed to foster certain relationships
or policies that are deemed important to our society. The rules seek to accomplish this end
by enveloping selected communications with the necessary degree of confidentiality.

If the holder of a privilege voluntarily discloses that which is privileged, there remains no
theoretical or practical basis for maintaining the privilege and thereby depriving the judicial
system of what may be relevant evidence. The privilege, however, is not to be revoked
automatically following any disclosure, however peripheral to the substance of the
communications being protected. The disclosure must be of a "significant part of the
privileged matter." The determination of what is significant must be made with a common
sense approach. If the substance of the privileged material is disclosed, the privilege should
be revoked. Otherwise, it should remain intact.

Rule 510Subdivision (a) was amended, effective March 1, 2008,
to recognize that
N.D.R.Civ.P. 26(b)(25)(B)'s safe harbor provision protects claims of
privilege under some
circumstances when information is voluntarily produced in the course of discovery.

Under subdivision (a), a voluntary disclosure of privileged material operates as a
waiver
of a given privilege. Subdivision (b) provides for a contrary result whenever the disclosure
is erroneously compelled or is made without opportunity by the holder to claim the
privilege.

Subdivision (b) will most often operate as a rule of exclusion, i.e., it will render
inadmissible evidence of the prior disclosure in a civil or criminal action to which the holder
of the privilege is a party. But, the rule does more than prohibit the use of such evidence
against the holder of the privilege, it provides that the privilege shall remain intact, to be
treated as originally granted. Thus, the holder, as a witness, may claim the privilege, in an
action to which he is not a party. Cf. The proposed Federal Rule 512, Deleted and
Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

The need for a protective rule of this type is clear with respect to disclosures
erroneously
compelled. Whether the compulsion is judicial or comes from some other authority, the rules
of privilege should not be left open to circumvention by their very breach.

The second basis for exclusion is meant to deal with those instances in which
disclosure is
made by someone other than the holder of the privilege. This would include disclosure by
a recipient of privileged information (e.g. a lawyer), one allowed to transmit privileged
information (e.g., a lawyer's representative), or an eavesdropper, among others.

It may be argued that once disclosure by a third party is made, the need for
confidentiality
ceases and, therefore, the privilege should not be maintained. However, with the increasing
number and sophistication of intrusions into individual privacy, it is necessary to guard
jealously those confidential communications deemed of such social importance as to warrant
being privileged. This provision will maximize the effect of a given privilege, although, as
may be argued, it cannot totally repair a breach of confidentiality.

Rule 510 was amended, effective_______________, to follow the 1999 amendments to
Uniform Rule of Evidence 510. The amendments incorporate the content of former Rule
511 so that both the voluntary and involuntary waiver of a privilege can be addressed in one
comprehensive rule. There is no intent to change any result in any ruling on evidence
admissibility.